The case stems from a family dispute where one litigant, V, could not afford to pay fees amounting to $3,600 for a trial that lasted 10 days.

British Columbia is currently the only province that levies substantial hearing fees ($800 per day after the 10th day of hearings), and while the province’s Rules of Civil Procedure already allow them to be waived for the “impoverished” or “indigent,” V did not strictly fall under these categories.

Nevertheless, the trial judge stayed V’s obligation and invited submissions on the constitutionality of court hearing fees. This invitation was met by challenges by the Trial Lawyers Association and the provincial branch of the Canadian Bar Association.

Today, in a 6-1 ruling written by Chief Justice Beverley McLachlin, the top court came down squarely in favour of increased access to justice.

The decision states that while court hearing fees are permissible in principle, those that present “undue hardship” to litigants, such that they are discouraged from accessing the court system, violate core jurisdictional principles within the Constitution: “The historic task of the superior courts is to resolve disputes between individuals and decide questions of private and public law. Measures that prevent people from coming to the courts to have those issues resolved are at odds with this basic judicial function. Therefore, hearing fees that deny people access to the courts infringe the core jurisdiction of the superior courts and impermissibly impinge on s. 96 of the Constitution Act, 1867.”

The court, however, declined to provide an immediate solution by reading into the law the remedy suggested by the B.C. Court of Appeal to add a new condition to the Rules of Civil Procedure. Rather, the court has simply struck down the fees as unconstitutional and leaves it to legislature to rewrite the rules if it wishes to do so.

Darrell Roberts, associate counsel at Miller Thomson LLP in Vancouver, represented the Trial Lawyers Association before the top court. He calls the ruling a “ringing statement that the superior courts of this country are essential for the maintenance of the rule of law.”

“It identifies that the courts are a public good and not simply the preserve of government, which uses the public fees to go to court anyway, and corporations and wealthy individuals. That’s the importance to take from this decision.”

Roberts also says it’s a “wake-up call” for attorneys general across the country, particularly those in Alberta, Ontario, and Quebec who defended the court hearing fees in this case despite not having them in their own jurisdictions.

“All three took the position that the hearing fees were OK,” says Roberts.

“Now why would they do that when they don’t have hearing fees in their own jurisdictions? The answer is inescapable. They’re trying to protect the future potential taxing jurisdiction of their provinces.”

Roberts finds the intervention of the attorneys general in this case troubling and says any interest they may have in protecting their provinces’ jurisdiction to tax is superseded by their primary duty to maintain the rule of law.

“It’s a wake-up call, in my view, to the attorneys general to pay more attention to maintaining the rule of law for all British Columbians. That’s their duty.”

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